A "mentor-apprentice" relationship when certain conditions are met
It shall be recognized as an employment relationship
——Huang v. Health Physiotherapy Company, a labor dispute case
【Case Focus】
Whether a de facto employment relationship has been established between Huang and the health physiotherapy company.
[Facts]
The health physiotherapy company was established on December 27, 2018, and the legal representative, Shi, is the inventor of a patent of the health physiotherapy company. On May 13, 2019, Shi posted a recruitment advertisement in a WeChat group to recruit technicians for a health physiotherapy company. Huang joined the health physiotherapy company in June 2019, commensurate with Shi's mentor and apprentice, received his technical training and provided health care services to customers according to the prescribed technical standards. From June 26 to October 28, 2019, Huang reported and counted the daily service of customers in the WeChat group according to Shi's request, totaling more than 200 times. Shi repeatedly asked Huang to serve customers well in WeChat, instructed Huang to become the store manager through WeChat on July 20, 2019, and instructed Huang to buy materials, decorate the store, and pay wages through WeChat from the end of July to August 2019. From August 17, 2019 to the end of October 2019, Huang sent WeChat messages to Shi several times, asking Shi to settle his salary, and Shi immediately transferred 1,000 to 2,500 yuan to Huang's WeChat. On November 15, 2019, Shi transferred 5,330 yuan to Huang through an Alipay account with the account name "Health Physiotherapy Company" and remarked "salary". The total amount of the above amount is 14,830 yuan. The health physiotherapy company did not sign a written labor contract with Huang, did not go through social insurance procedures for Huang, and did not pay social insurance premiums.
On December 2, 2019, Mr. Huang, as the claimant, applied to the Siming District Labor Arbitration Commission for arbitration with a health physiotherapy company as the respondent. The health therapy company filed a counterclaim for arbitration on December 19. During the arbitration hearing, the health physiotherapy company stated that the subsidies issued by Shi to Huang were in the financial accounts of the health physiotherapy company. On February 17, 2020, the Siming District Labor Arbitration Commission rendered the Xia Si Lao Ren Zhong Case Zi [2020] No. 7 Award. Huang claimed that some of the facts in the award were wrongly determined, so he filed a lawsuit in this case, requesting that the health physiotherapy company be ordered to pay overtime wages. The health physiotherapy company asserted that it was a TCM physiotherapy technology training base, and that the relationship between Huang and Shi was an apprenticeship, and that there was no labor relationship between the health physiotherapy company and Huang, and that there was no need to pay the difference in basic salary, job allowance, twice the difference in wages without a written labor contract, and economic compensation, and ordered Huang to pay tuition fees.
[Trial]
After trial, the Siming District People's Court of Xiamen City, Fujian Province, held that: first, according to Shi's arrangement, Huang provided health care services to customers for a long time according to the prescribed standards, carried out store decoration, bought materials, paid wages, etc., and received training as required, reported on the situation of serving customers, etc., and Shi had the fact that Huang managed and arranged the work content. Secondly, Huang's customer service and decoration stores are all located in the location of the branch of the health physiotherapy company, and Huang assumes the responsibility of managing the branch, and Shi will include the payment to Huang in the company's financial accounts and one of the transfers remarks "salary", that is, Shi manages Huang in the name of the legal representative of the health physiotherapy company and pays labor remuneration. In addition, the health physiotherapy company is a legally established limited liability company with the qualifications of an employing entity, and Huang's main job content - providing health care and conditioning services to customers belongs to the business scope of the health physiotherapy company. Therefore, the relationship between the health physiotherapy company and Huang meets the circumstances stipulated in Article 1 of the Notice on Matters Concerning the Establishment of Labor Relations issued by the former Ministry of Labor and Social Security, and the establishment of a de facto labor relationship between the two parties shall comply with the provisions of labor laws and regulations.
The court of first instance ruled that Huang and the health physiotherapy company had an employment relationship between June 21, 2019 and November 27, 2019, and that the labor relationship was terminated on November 28, 2019, and that the health physiotherapy company should pay Huang the basic salary difference of 9,337.38 yuan, the job subsidy of 1,954.02 yuan, the difference of two times the salary of 19,720 yuan without a written labor contract, and the economic compensation of 2,331 yuan for the termination of the labor relationship. The overtime wage on statutory holidays was 1,929.1 yuan, and a certificate of termination of labor relations was issued, and Huang's other litigation claims were rejected, and the litigation claims of the health physiotherapy company were rejected.
After the verdict was pronounced, the health physiotherapy company appealed.
The Intermediate People's Court of Xiamen City, Fujian Province, held that the first-instance judgment found that a de facto labor relationship had been established between the health physiotherapy company and Huang, and that it was not improper. Although Shi and Huang are commensurate with each other, the two parties have not established a training contract relationship. In this case, Shi, as the legal representative and technical leader, had certain technical training and exchanges with Huang, which was highly likely to be within the scope of work and business training, which was insufficient to prove that the training contract relationship between the two parties was not sufficient to prove that there was a training contract relationship between the two parties. The health physiotherapy company asserted that there was a mentor-apprentice relationship between Shi and Huang, and claimed that there was no employment relationship between Shi and Huang on this ground, which lacked factual and legal basis.
The court of second instance rejected the appeal and upheld the original judgment.
[Judge's Afterword]
The dispute involved in the case occurred in the traditional Chinese medicine physiotherapy industry in mainland China, and Huang did not enter into a written labor contract with the health physiotherapy company, and the legal representative Shi was commensurate with "master and apprentice" and received technical training. In order to protect the inheritance and development of traditional skills, in industries with the cultural tradition of "apprenticeship", the "master-apprentice" relationship should be prudently determined to establish a de facto labor relationship. In accordance with Article 1 of the Notice on Matters Concerning the Establishment of Labor Relations issued by the former Ministry of Labor and Social Security, this case comprehensively reviewed the qualifications, affiliation, and business scope of Huang and the health physiotherapy company. However, this provision is relatively general, and when determining whether the "master-apprentice" relationship is an employment relationship, it should also focus on determining that Huang and the health physiotherapy company have actually formed a highly subordinate relationship and have the essential characteristics of the labor relationship from the aspects of management intensity, labor nature, labor intensity, labor remuneration, etc., so as to determine that the two parties have established a de facto labor relationship in accordance with the law. This case effectively protects the legitimate rights and interests of workers, and is conducive to guiding employers engaged in traditional folk skills to conclude labor contracts and establish labor relations in accordance with the law, and to carry out vocational training and teaching inheritance in an orderly manner.
1. Workers are subject to a certain degree of management by the employer.
The employer's management of the employee is manifested in the application of labor rules and regulations and its direct management and control. Some smaller employers do not necessarily have standardized and written labor rules and regulations, but employees should still abide by unwritten management regulations, and should comprehensively examine the actual situation of employees under the management of the employer. In this case, Huang was required to provide services to customers in accordance with the prescribed technical standards and hours, report and count the daily service to customers in the company's WeChat group, receive training and share experiences, etc., which shows that Huang actually complied with the company's relevant management norms. In his daily work, Huang was under the direct management and control of "Master" Shi, who was the legal representative of the company at the time and had the right to directly manage employees on behalf of the company. At the same time, the employer's management of employees should not be too loose and disorderly, but should reach a certain level of management intensity. With the popularity of online social networking, many employers use social software such as WeChat for daily management, and evidence such as chat records can assist in judging the intensity of management. In this case, Huang reported his daily work in the WeChat group of the health physiotherapy company for a long time, and Shi repeatedly asked Huang to serve customers well and instructed Huang to complete specific work through WeChat. A comprehensive examination of the frequency and frequency of the above-mentioned reports and instructions shows that the labor management of Huang by the health physiotherapy company has reached a certain intensity. In addition, reasonable vocational training is an integral part of labour management. In order to make Huang's labor meet the technical standards required by the company, the legal representative and technical leader Shi trained Huang, which is the proper meaning of labor management and has no conflict with the establishment of labor relations.
2. The worker is arranged by the employer to engage in a certain intensity of labor.
The labor performed by the worker under the management of the employer should reach a certain frequency and intensity, which is different from the practical practice for the purpose of learning and training. In this case, under the management of a health physiotherapy company, Huang provided long-term and high-frequency health care services to customers as a technician, and counted and reported more than 200 times in the WeChat group within four months, in addition to actually engaging in store decoration, buying materials, paying wages and other labor according to Shi's instructions, and even managing the branch as a "store manager". It is clear that the frequency and intensity of the work that Huang was arranged by the health therapy company has reached a relatively high level, far exceeding the necessary frequency of practical exercises for the purpose of learning skills, and the other work undertaken by Huang is also clearly beyond the reasonable scope of technical training.
3. The worker receives the remuneration paid by the employer.
In practice, the form of payment of labor remuneration by an employer may not strictly comply with financial regulations, and for labor remuneration that is not directly paid from the company's account, it should be combined with the company's accounts and other financial records to examine whether the payment is actually made by the employer. In this case, Huang repeatedly demanded wages from the legal representative Shi, and Shi paid Huang a certain amount of labor remuneration and remarked "wages" when transferring the money. The health physiotherapy company admitted that the "subsidy" issued by Shi to Huang was included in the company's financial accounts. Huang actually received the labor remuneration issued by the health physiotherapy company and formed an economic affiliation with the health physiotherapy company.
To sum up, Huang and the health physiotherapy company actually formed a high degree of affiliation, which has the essential attributes of the labor relationship, and at the same time, both parties have the legal subject qualifications, and Huang's labor is an integral part of the business of the health physiotherapy company. Therefore, although Huang and Shi were named "master and apprentice", Huang established a de facto labor relationship with the health physiotherapy company.